United States District Court, E.D. Virginia, Richmond Division
ANISSA DELAPARA, o/b/o V. D.J., pro se Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
Delapara, Plaintiff, Pro Se.
Security Administration, Defendant, represented by Elizabeth
Catherine Wu, U.S. Attorney Office.
REPORT AND RECOMMENDATION
J. NOVAK, Magistrate Judge.
9, 2013, Plaintiff Anissa Delapara ("Plaintiff"),
proceeding pro se, filed an application for
supplemental security income ("SSI") on behalf of a
minor child claimant under the Social Security Act
("Act"). The Commissioner denied Plaintiffs claims
both initially and on reconsideration. On February 11, 2015,
an administrative Jaw judge ("ALJ") held a hearing,
and, on June 18, 2015, the ALJ issued a decision denying
Plaintiff's claims. On November 24, 2015, the Appeals
Council denied Plaintiffs request for review, rendering the
ALJ's decision the final decision of the Commissioner.
February 8, 2016, Plaintiff appealed the Commissioner's
decision to this Court pursuant to 42 U.S.C. Â§ 405(g). This
matter comes before the Court pursuant to 28 U.S.C. Â§
636(b)(1)(B) on Defendant's Motion to Dismiss (ECF No.
13). Defendant moves to dismiss Plaintiffs claim on the basis
that Plaintiffs appeal was untimely filed. Having reviewed
the parties' submissions, the Court is now prepared to
issue a Report and Recommendation pursuant to 28 U.S.C. Â§
636(b)(1)(B). For the reasons set forth below, the Court
recommends that Defendant's Motion to Dismiss (ECF No.
13) be GRANTED and that Plaintiff's Complaint (ECF No. 3)
be DISMISSED with prejudice.
9, 2013, Plaintiff protectively filed for SSI on behalf of a
minor child claimant. (Def.'s Mem. in Supp. of Mot. to
Dismiss ("Def.'s Mem.") (ECF No. 13), Deel. of
Roxie Rasey Nicoll ("Nicoll Deel.") (ECF No. 13-1),
Attachment I to Nicoll Deel. C'ALJ's Decision")
(ECF No. 13-2) at 1.) On June 25, 2013, the Agency denied
Plaintiff's claims. (ALJ's Decision at 1.) On January
21, 2015, the Agency denied Plaintiff's claims on
reconsideration. (ALJ's Decision at 1.) On February 11,
2015, the ALJ held a hearing during which Plaintiff and a
vocational expert testified. (ALJ's Decision at 1.) On
June 18, 2015, the ALJ issued a decision denying
Plaintiff's application for SSL (ALJ's Decision at
November 24, 2015, the Appeals Council denied Plaintiff's
request for review of the ALJ's decision. (Attachment 4
to Nicoll Deel. ("Appeals Council Notice") at 1.)
The Appeals Council noted that if Plaintiff disagreed with
its decision, Plaintiff could file a civil action in the
United States District Court for review. (Appeals Council
Notice at 2.) After detailing how Plaintiff may file a civil
action, the Appeals Council explained that Plaintiff had
sixty days to file that civil action. (Appeals Council Notice
at 2-3.) The Appeals Council further explained that such time
frame would commence upon Plaintiff receiving the Appeals
Council Notice and the Appeals Council would assume that
Plaintiff received the Notice within five days of the date of
the Notice, unless Plaintiff could demonstrate otherwise.
(Appeals Council Notice at 3.) Should Plaintiff not have been
able to file her civil action within sixty days, she could
have requested an extension in writing from the Appeals
Council. (Appeals Council Notice at 3.) Plaintiff filed no
request for an extension. On February 5, 2016, Plaintiff
commenced her action in this Court by filing her Motion for
Leave to Proceed in forma pauperis (ECF No. 1).
argues that this Court should dismiss Plaintiff's
Complaint, because Plaintiff filed this action more than
sixty days after receipt of the Appeals Council Notice.
(Def.'s Mem. at 4-5.) Further, Defendant contends that
Plaintiff did not demonstrate good cause to extend the
sixty-day period by equitable tolling of the prescribed time
line. (Def.'s Mem. at 5-6.) Plaintiff responds with the
following reasons for missing the filing deadline: (1) the
Social Security Administration ("SSA") mismanaged
her personnel files; (2) the SSA never adequately explained
her rights in the Appeals Council Notice; (3) bad weather
prevented her from gathering necessary documents; and (4) she
did not have legal counsel. (Resp. to Dismissal (Pl.'s
Resp.) (ECF No. 74) at 1-2.) Finding that Plaintiff did not
timely file this action without good cause, the Court
recommends dismissal of Plaintiffs Complaint with prejudice.
Plaintiff did not timely file this action within the required
has prescribed the procedure for judicial review in this
Court of a denial of benefits under the Act:
Any individual, after any final decision of the Commissioner
of Social Security made after a hearing to which he was a
party, irrespective of the amount in controversy, may obtain
a review of such decision by a civil action commenced within
sixty days after the mailing to him of notice of such
decision or within such further time as the Commissioner of
Social Security may allow.
42 U.S.C. Â§ 405(g); see also 20 C.F.R. Â§ 422.210(c)
(noting that civil action must be commenced within sixty
days). Thus, a plaintiff has a sixty-day time
period after the final decision of the Commissioner or
"such further time as the Commissioner... may
allow" to file her action with this Court. This
sixty-day time period, promulgated by Congress,
"constitutes a ...